Giovatto v. O'Connell

Appellate Division of the Supreme Court of New York

Giovatto v. O'Connell

278 A.D. 371, 105 N.Y.S.2d 532, 1951 N.Y. App. Div. LEXIS 3816

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 20, 1951

StatusPublished

Cited by6 cases

This text of 278 A.D. 371 (Giovatto v. O'Connell) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Giovatto v. O'Connell, 278 A.D. 371, 105 N.Y.S.2d 532, 1951 N.Y. App. Div. LEXIS 3816 (N.Y. Ct. App. 1951).

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Opinions

Per Curiam.

In this proceeding, the State Liquor Authority appeals from an order of the Special Term which annulled its determination disapproving an application for renewal of a restaurant liquor license and directed the issuance of such license. There is evidence in the record that on six separate occasions homosexuals were arrested charged with loitering in the premises for the purpose of soliciting men to commit unnatural acts, and were subsequently convicted of that offense. The court below apparently treated the case as if it were a revocation proceeding instead of a refusal to renew petitioner’s license. Refusal of a license either originally or by way of renewal is not the same as the revocation or suspension of a license. An application for renewal is to be treated in precisely the same manner as an application for a new license (Matter of Restaurants, etc., Longchamps v. O’Connell, 271 App. Div. 684, affd. 296 N. Y. 888). The courts will not annul the action of the Authority in refusing to issue or renew a liquor license unless it clearly appears that its action has been arbitrary, capricious and unreasonable (Matter of Fiore v. O’Connell, 297 N. Y. 260). There is ample evidence in this record to sustain the determination of the Authority in refusing to grant petitioner’s license. It is argued that the case of Matter of Lynch’s Builders Restaurant v. O’Connell (277 App. Div. 705) requires an affirmance of the order under review. We think otherwise. That case is distinguishable. Tho,Lynch case did not involve the refusal to renew a license. It was a revocation proceeding. In that case it appeared that two arrests were made. There was but one conviction in that case. In the case before us, the acts of solicitation occurred on six separate occasions and in each instance the homosexual was convicted of violating subdivision 8 of section 722 of the Penal Law.

The order appealed from should be reversed and the determination confirmed, with $20 costs and disbursements to the appellants.

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Per Curiam.

In this proceeding, the State Liquor Authority appeals from an order of the Special Term which annulled its determination disapproving an application for renewal of a restaurant liquor license and directed the issuance of such license. There is evidence in the record that on six separate occasions homosexuals were arrested charged with loitering in the premises for the purpose of soliciting men to commit unnatural acts, and were subsequently convicted of that offense. The court below apparently treated the case as if it were a revocation proceeding instead of a refusal to renew petitioner’s license. Refusal of a license either originally or by way of renewal is not the same as the revocation or suspension of a license. An application for renewal is to be treated in precisely the same manner as an application for a new license (Matter of Restaurants, etc., Longchamps v. O’Connell, 271 App. Div. 684, affd. 296 N. Y. 888). The courts will not annul the action of the Authority in refusing to issue or renew a liquor license unless it clearly appears that its action has been arbitrary, capricious and unreasonable (Matter of Fiore v. O’Connell, 297 N. Y. 260). There is ample evidence in this record to sustain the determination of the Authority in refusing to grant petitioner’s license. It is argued that the case of Matter of Lynch’s Builders Restaurant v. O’Connell (277 App. Div. 705) requires an affirmance of the order under review. We think otherwise. That case is distinguishable. Tho,Lynch case did not involve the refusal to renew a license. It was a revocation proceeding. In that case it appeared that two arrests were made. There was but one conviction in that case. In the case before us, the acts of solicitation occurred on six separate occasions and in each instance the homosexual was convicted of violating subdivision 8 of section 722 of the Penal Law.

The order appealed from should be reversed and the determination confirmed, with $20 costs and disbursements to the appellants.

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Bluebook (online)

278 A.D. 371, 105 N.Y.S.2d 532, 1951 N.Y. App. Div. LEXIS 3816, Counsel Stack Legal Research, https://law.counselstack.com/opinion/giovatto-v-oconnell-nyappdiv-1951.

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